Trademarks, Consumer Psychology, and the Sophisticated Consumer

76 Pages Posted: 7 Mar 2007 Last revised: 9 Jun 2015

Thomas R. Lee

Government of the State of Utah - Utah Supreme Court; Brigham Young University - J. Reuben Clark Law School

Glenn Christensen

Brigham Young University - Department of Business Management

Eric DeRosia

Brigham Young University - Department of Business Management

Abstract

The degree of consumer "sophistication" is an important factor in the judicial evaluation of the legal standard of trademark infringement: the likelihood of consumer confusion. Yet although the law in this field is premised on assumptions about consumer psychology, the case law has developed in ignorance of an important body of scholarship devoted to that very subject. This article seeks to remedy this disconnect by drawing on scholarship in the field of consumer psychology to develop a model of consumer cognition. The consumer psychology literature suggests a much richer conception of sophistication than is currently acknowledged by the courts. The case law is dominated by an ad hoc treatment of sophistication that has generated numerous conflicts and inconsistencies in the judicial evaluation of trademark infringement. Our model provides a comprehensive framework for understanding the proper role of consumer sophistication in trademark infringement litigation and for resolving many of the conflicts in the case law.

Keywords: trademark, intellectual property, consumer behavior, consumer psychology

Suggested Citation

Lee, Thomas R. and Christensen, Glenn and DeRosia, Eric, Trademarks, Consumer Psychology, and the Sophisticated Consumer. Emory Law Journal, Vol. 57, pp. 575-650, 2008. Available at SSRN: https://ssrn.com/abstract=967742 or http://dx.doi.org/10.2139/ssrn.967742

Thomas R. Lee (Contact Author)

Government of the State of Utah - Utah Supreme Court ( email )

450 South State Street
Salt Lake City, UT 84114
United States

Brigham Young University - J. Reuben Clark Law School ( email )

519 JRCB
Brigham Young University
Provo, UT 84602
United States

Glenn Christensen

Brigham Young University - Department of Business Management ( email )

Provo, UT 84602
United States
(801) 422-1773 (Phone)

Eric DeRosia

Brigham Young University - Department of Business Management ( email )

Provo, UT 84602
United States
(801) 473-5051 (Phone)

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